Tuesday, October 29, 2013

Reflections on Two Documentary Readers

The arrival last week of two, maroon-covered volumes of a paperback documentary reader was bound to kindle powerful associations for me. My gateway into legal history was a “Britcon” course taught by Charles T. Wood at Dartmouth, who assigned readings from two, maroon-covered volumes of a paperback documentary reader, Carl Stephenson and Frederick George Marcham’s Sources of Constitutional History (1937; rev. ed. 1972). Not until, on a panel at the 2010 meeting of the American Society for Legal History, John Langbein attributed the gradual attrition of American-trained historians English legal history to the passing of Britcon from the undergraduate curriculum did I realize that in chasing into graduate study the excitement I felt in Wood’s course I was acting in accordance with a scholarly discipline’s plan for its own reproduction.

I hope the Britcon course has or, if not, finds its historian. I’d like to know whether it originated as a vehicle for assuring the white, Anglo-Saxon, Protestant and male members of the American gentry class that they were part of a great constitutional tradition. If it did, one assumes that college presidents and Boards of Trustees were not amused when professionally trained scholars refused to play along. Certainly, WASP privilege was no part of the message I got in the late 1970s from Wood, who was so heterodox as to emphasize how much a putatively exceptional English constitutional tradition shared with those of other European peoples, including especially the presumably benighted French.

Debates on the Federal Judiciary: A Documentary History (Federal Judicial Center, 2013) is not likely to have the same effect on students as Stephenson and Marcham did on me. For many students, a history that started in their own country a mere 226 years ago will lack the allure of 1066 and all that. (On that allure, consider the primary meaning of the term Britcon today.) Further, readers encountering these volumes in a classroom are likely to be in their third-year of law school (that is, if law schools continue to have a third year). By that time, the close reading of texts will have lost much of its novelty. Even so, a seminar taken the same semester as a Federal Courts course could permanently endow law students with the historian's double vision of the present. That is, it could teach them to see the federal courts in all their immediacy and as the continuation of a long train of political, social, and economic controversies.

Volume 1, compiled and edited by Bruce A. Ragsdale, Director of the Federal Judicial History Office, covers the years 1787-1975. Volume 2, compiled and edited by Daniel S. Holt, Assistant Historian at the FJHO, covers the years 1875-1937. A third volume will end in the present and "survey the history of bankruptcy in the federal courts." The two completed volumes are downloadable as pdf files gratis, a feature that digital natives will especially appreciate.

Article III of the U.S. Constitution makes it into Volume 1, but Ragsdale and Holt refrain from reproducing readily accessible statutes, judicial opinions and other positive sources of law. (In an appendix, Holt does list and summarize "Major Legislation Related to the Judiciary, 1875-1939.") Instead, they reproduce, well, debates. These are by no means only formal ones, although the compilers have transcribed key passages from Farrand and many pages from the Congressional Globe and Record. But they have also followed quarrels as they spilled out of the Federal Convention and Congress into pamphlets, speeches, letters, newspapers, official reports, public memorials, and legal and popular periodicals. Ragsdale devotes sections to the Judiciary Acts of 1789 and 1801; the repeal of the 1801 act; circuit riding and the nonjudicial responsibilities of federal judges; the suability of the states; Samuel Chase’s impeachment and trial; judicial tenure; judicial review and federalism; the Civil War and the reorganization of the federal judiciary; and the Jurisdiction and Removal Act of 1875. Holt, covering terrain more familiar to me, selects lively documents that illuminate the Evarts Act of 1891; the Populists’ and Progressives’ attacks on the federal judiciary; the creation of courts of special jurisdiction; the long campaign for the Federal Rules of Civil Procedure; the Conference of Senior Circuit Judges; the Judges’ Bill of 1925; battles over diversity jurisdiction; FDR’s Court Plan of 1937; and the increasing administrative independence of the federal judiciary. (On the last, he includes testimony by one of my former enthusiasms, Judge Harold M. Stephens of the D.C. Circuit.) I had gotten an advance look at the selections on the federal labor injunction, which include the trade unionists proposal to redefine “property” to exclude labor contracts as well as the better known approach followed in the Norris-LaGuardia Act of 1932. I also appreciate the following section, on Hiram Johnson’s proposal to limit sharply federal courts’ power to enjoin the ratesetting of state public utility commissions, a major legal battleground of the 1920s and early 1930s.

Just as, back in my college days, Wood assigned a text–J.E.A. Jolliffe’s Constitutional History of Medieval England from the English Settlement to 1485 (1937)–as well as Stephenson and Marcham, the teacher of a seminar on the history of the federal judiciary would probably want to assign a text along with Debates on the Federal Judiciary. In progress is a comprehensive one-volume history of the federal judiciary, commissioned by the Supreme Court Historical Society and the Federal Judicial History Office and written by Peter C. Hoffer, Williamjames Hull Hoffer, and N.E.H. Hull. Until it appears, I can recommend a synthesis sounding in American Political Development, Justin Crowe’s Building the Judiciary: Law, Courts, and the Politics of Institutional Development (Princeton University Press, 2012), on which see Kevin C. Walsh's Jotwell review. Otherwise one would have to assemble a narrative from the periodical
literature, court- and circuit-specific monographs, case-specific
contributions to the University Press of Kansas’s series Landmark Law Cases and American Society, and more broadly conceived books, such as Edward A. Purcell, Jr.’s Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870-1958 (Oxford University Press, 1992). On the circuit and court histories,
see Purcell’s review essay, “Reconsidering the Frankfurterian Paradigm:
Reflections on Histories of Lower Federal Courts," Law and Social Inquiry 24 [1999]: 679-750, and Michael Les Benedict’s H-Law review of Justice and Legal Change on the Shores of Lake Erie: A History of the U.S. District Court for the Northern District of Ohio, ed. Paul Finkelman, Roberta Sue Alexander (Athens: Ohio University Press, 2012).